The Democratic Disconnect: this is title of a report produced for the Transatlantic Academy by scholars who describe a critical breach in the relationship of citizen to government. Seyla Benhabib et al, The Democratic Disconnect (May 2013), http://www.gmfus.org/archives/the-democratic-disconnect-citizenship-and-accountability-in-the-transatlantic-community. They argue that around the world, the US included, “democracy is in trouble” as governments fail to answer to their citizens who respond with a deepening lack of trust and withdrawal from traditional channels of political engagement. Id. at 3. The urgent need is for “fairer and fuller citizen participation,” a revival of civic engagement from the “bottom-up.” Id. at 5, 118.

For the United States, the authors recommend a policy agenda of voting rights reform (and resistance to voter suppression as they define it) and an end to legislatively engineered gerrymandering. In a curious turn, they leave campaign finance to the side for the moment, though reserving it for inclusion in a “full-scale democratic reform agenda.” Id. at 118. The goals are sound, but unresolved is the question of why citizens lacking trust in government, convinced that politicians are in it for themselves, would trust reform enactments.

The report appears in this country at a time when a debate has erupted over alleged government misuse of the rules of politics—the IRS’s possible targeting in its administrative reviews of tax-exempts holding a particular political viewpoint. This concern is not new. Suspicion of partisan self-interest or machination in making and administering political law has been shared by members of the Supreme Court, mostly those found in the majority hostile to campaign finance regulatory enactments. But an emphasis now on citizen empowerment, on bottom-up reforms, is promising: reforms built carefully and clearly to this specification could help temper wariness of the motives of legislators.

The discussion of reform would center more practically and consistently on the nature and allocation of benefits and harms. The question pursued would be whether a proposed reform was designed or likely to work from the bottom up—facilitating participation, multiplying the avenues for engagement, and widening the range of those who can take advantage of them—or whether it failed this test.

The Supreme Court has hinted at what this analysis might look like. In Randall v. Sorrell, it explored, awkwardly, the “danger sign” that a reform measure—in this case, strict limits on contributions—might have been improperly crafted. 548 U.S. 230, 126 S.Ct. 2479 (2006). Justice Breyer identified five factors that, “taken together,” indicated that the danger was real and that constitutional limits had been transgressed. Id. at 253. On first reading, the framework he used was based on the established doctrinal framework: the issue was the formal one of whether these limits were “narrowly tailored.” But Justice Breyer seemed more focused on the question of how, in practical terms, the benefits and harms were allocated among those affected by the low limits.

Within the class of political competitors, the Court found, the burden was borne primarily by challengers and the benefit went to the incumbent. More significant was the attention it paid to those outside the political class—volunteers and small donors who would have difficulty working within these contribution limits in supporting their favored candidates or party. Volunteers could give time, but one who who “makes four or five round trips driving across the State performing volunteer activities coordinated with the campaign can find that he or she is near, or has surpassed, the contribution limit. So too will a volunteer who offers a campaign the use of her house along with coffee and doughnuts for a few dozen neighbors to meet the candidate, say, two or three times during a campaign.” Id. at 260. Donors wishing to donate small amounts to their preferred political party would have little room to give. “[The] Act would severely inhibit collective political activity by preventing a political party from using contributions by small donors to provide meaningful assistance to any individual candidate.” Id. at 258.

Randall v. Sorrell is not typical of the Court’s approach to these questions. More often it is hard to see through its formal doctrinal analysis the concrete benefits and harms that would guide a “bottom up” evaluation. The “speech” test now in use does not typically distinguish the individual from the institutional speaker—the identify of the speaker, the Court affirmed most recently, is irrelevant. The small and large donor are by and large working within the same constitutional protections, even if the small donor did make what was a rare and doctrinally unsettled appearance in the Vermont case. In voting rights, the voter has contended with the state’s assertion of administrative and other interests, some of which, like the interest in protecting against “fraud,” are highly contested and give rise to charges of partisan manipulation of the voting process.

But in their review of the facts, courts do exhibit sensitivity to the question—”who benefits, who doesn’t?”—and this, more than fidelity to doctrine, is what shapes the outcome. Often but not always, the analysis of benefit can stimulate or protect political activity at the grassroots, among the citizenry at large, and not so much where resources and the capacity for influence are already well established.

If there is a turn now, as the authors of The Democratic Disconnect advocate, toward citizen empowerment, this goal will have to enter explicitly into the design of reforms and the terms of constitutional review.